This case is before the Authority because of a
negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute). The disputed portion of the
proposal precludes the use of rotating shifts. For the reasons which follow, we
find that the proposal is nonnegotiable because it interferes with management's
right to assign work under section 7106(a)(2)(B) of the Statute.

II. Background and Proposal

The Union's proposal was submitted in the course of
mid-term negotiations over an Alternative Work Schedule (AWS) plan sought by
the Union. Except for Data Processing Staff employees, employees in the
bargaining unit work during a 6 a.m. to 7 p.m. band of hours. Data Processing
Staff employees rotate through three shifts. The Union's proposal provides
that:

Article 5, Section 3

The normal workweek in the Atlanta District is Monday
through Friday. Non-work days will normally be Mondays or Fridays. Management
will determine non-work and eight hour days for the 5-4-9 schedule. NTEU 26
shall be given reasonable advance notice of any scheduled Saturday or Sunday
work for bargaining unit employees (includes temporaries, WAE's, &
part-timers) so that we may arrange for steward representation if desired.
Applicable overtime and night differential will be paid. Comp time will not be
used. It is recognized that Data Processing Staff personnel working on a 7 day
or 24 hour schedule shall be an exception to the above. Fixed schedules
covering these personnel shall be finalized and included in this agreement.
Rotating shifts are not acceptable. [Only the underlined portion is in
dispute.]

III. Positions of the Parties

The Agency contends that the disputed sentence, insofar
as it seeks to bar rotating shifts, is outside the scope of the parties'
negotiations, which are limited to AWS and flexitime. The Agency notes that it
is not seeking to change the established practice that employees other than the
Data Processing Staff do not work rotating shifts. The Agency also contends
that the disputed sentence, particularly as it would apply to its Data
Processing employees, is nonnegotiable under sections 7106(a) and (b) of the
Statute because it is inconsistent with management's rights: (1) to determine
the mission (collection of taxes), organization and budget of the Agency; (2)
to assign employees and work and to assign personnel by which its operations
shall be conducted; and (3) to determine the grades of employees
assigned.

In addition, the Agency argues that to the extent that
the disputed sentence is intended to preclude the Agency from establishing a
night shift, the sentence conflicts with management's rights: (1) to determine
the budget, organization and number of employees under section 7106(a)(1); (2)
to assign employees, to direct employees, to assign work and to determine the
personnel by which operations are to be conducted under sections 7106(a)(2)(A)
and (B); and (3) to determine the number and types of employees to a particular
work project or tour of duty and to determine the methods and means of
performing work under section 7106(b)(1).

The Union contends that the disputed sentence involves
AWS. The Union argues that the Agency's claim that the disputed sentence will
have an adverse impact on the Agency may only be made before the Federal
Service Impasses Panel (FSIP) pursuant to 5 U.S.C. § 6131, which provides
for the resolution of disputes concerning AWS proposals. In support, the Union
relies on American Federation of Government Employees, Local 1934 and
Department of the Air Force, 3415 ABG, Lowry AFB, Colorado, 23 FLRA 872
(1986) (Lowry AFB).

In its Reply Brief, the Union indicated that the sentence
is not intended to bar the establishment of a night shift. Rather, according to
the Union, the purpose of the disputed sentence is to preclude the assignment
of employees to rotating shifts.

IV. Analysis and Conclusion

A. The Disputed Sentence Does Not Involve AWS

Alternate work schedules are negotiated under the Federal
Employees Flexible and Compressed Work Schedules Act.(*) The Work Schedules Act provides that an exclusive
representative can negotiate with an agency for the establishment of flexible
and compressed work schedules for bargaining unit employees. 5 U.S.C. §
6130(a)(1). As reflected in its legislative history, the Act is intended to
include within the collective bargaining process "the institution,
implementation, administration and termination of alternative work
schedules[.]" S. Rep. No. 365, 97th Cong., 2d Sess. 14-15 (1982). The
legislative history also indicates that full negotiation is expected on these
aspects of alternative work schedules. SeeId. at 3,
5.

Under the Work Schedules Act, a compressed schedule is
defined, for full-time employees, as an 80-hour biweekly work requirement which
is scheduled for less than 10 workdays and, in the case of part-time employees,
as a biweekly basic work requirement of less than 80 hours scheduled for less
than 10 days. 5 U.S.C. § 6121(5)(A) and (B). Flexible schedules, as
provided in the Work Schedules Act, concern variable starting and quitting
times and the earning of credit hours for varying the length of the workday or
workweek. 5 U.S.C. § 6122.

Alternate work schedules for bargaining unit employees
are "fully negotiable" within the limits set by the Work Schedules Act.
SeeLowry AFB. Therefore, an alleged conflict between an
alternate work schedule and the Statute does not create a negotiability dispute
which the Authority will consider under section 7117 of the Statute. However,
questions concerning whether a proposed alternate work schedule conflicts with
the Work Schedules Act itself or with other laws superseding the 1982 Act are
subject to the negotiability appeal procedures of section 7117 of the Statute.
See, National Association of Government Employees, Local R12-167 and
Office of the Adjutant General, State of California, 27 FLRA 349, 354
(1987), petition for review filed sub nom.California National Guard
and Department of Defense v. FLRA, No. 87-1356 (D.C. Cir. July 27, 1987)
(State of California), where we found that certain sections of an
alternate work schedule proposal which included nonunit employees within a
proposed compressed workweek were nonnegotiable because they were inconsistent
with the Work Schedules Act.

Moreover, issues which do not concern the institution,
implementation, administration or termination of an alternate work schedule may
also be reviewed under the negotiability appeal procedures of section 7117 of
the Statute. SeeState of California at 354-55 where we found
that portions of an alternate work schedule proposal which assigned particular
tasks and responsibilities to nonunit personnel were reviewable under section
7117 of the Statute because they did not concern the institution,
implementation, administration or termination of employee work schedules. We
found that because those sections prescribed conditions of employment for
nonunit employees, they were outside the duty to bargain under the Statute.

We conclude that except for the sentence in dispute, the
balance of the proposal in this case concerns the institution, implementation,
administration or termination of alternative work schedules for the Agency's
employees. The disputed sentence, however, precludes the assignment of the
employees to rotating shifts. In our view, the disputed sentence is not
integrally related to the implementation of an alternative work schedule.
Rather, the disputed sentence concerns restrictions on the method of assigning
employees to various shifts in a multi-shift operation. Thus, the disputed
sentence does not concern the institution, implementation, administration or
termination of employee work schedules which are negotiable under the Work
Schedules Act. Therefore, we conclude that the disputed sentence is subject to
review by the Authority as to whether it is inconsistent with law--including
management rights under section 7106--rule or regulation.

B. The Disputed Sentence Interferes with Management's
Right to Assign Work Under Section 7106(a)(2)(B)

Although the Agency argued that the disputed sentence was
nonnegotiable because the Union stated that the intent of the sentence was to
preclude the establishment of a night shift, the Union clarified the intent of
the disputed sentence in its Reply Brief as not barring the establishment of a
night shift. Since the Union's clarification of the intent of the disputed
sentence is consistent with the wording of the sentence, we adopt the Union's
clarification for the purposes of this decision. Thus, we conclude that the
disputed sentence does not bar the establishment of a night shift and we reject
the Agency's arguments to the contrary. Nevertheless, we find that the disputed
sentence directly interferes with management's right to assign work under
section 7106(a)(2)(B) of the Statute.

Proposals involving rotation systems of shift assignments
which dictate to management the particular shift to which an employee must be
assigned and would prevent management from scheduling employees with
specialized skills to perform specific tasks on the particular shift where that
work must be done violate management's right to assign work under section
7106(a)(2)(B). See, for example, National Federation of
Federal Employees, Local 1798 and Veterans Administration Medical Center,
Martinsburg, West Virginia, 27 FLRA 239, 260 (1987) (Proposal
10).

In this case, the Agency states, without contravention by
the Union, that six GS-7 and three GS-8 Data Processing employees rotate on a
4-week basis among the three daily 8-hour shifts. According to the Agency, the
type of data processing work required to be completed on each daily shift is
different and requires different skills. The Agency notes further that
employees perform the full range of the duties encompassed in their positions
only by working all three shifts. Thus, the Agency states that if shift
rotations were eliminated, employees assigned only to the day shift and
possibly employees assigned only to the afternoon shift would lose their GS-7
grade level because they would not be working the full range of the job
responsibilities as required by their GS-7 level positions.

The disputed sentence would preclude the assignment of
the Agency's employees to rotating shifts consistent with management's needs to
perform its mission. Therefore, the disputed sentence would interfere with
management's right to assign work under section 7106(a)(2)(B) of the
Statute.

The disputed sentence is distinguishable from cases in
which the Authority has held that proposals prescribing criteria for the
assignment of employees to shifts are negotiable. Seefor
example, International Plate Printers, Die Stampers and Engravers Union
of North America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of
Engraving and Printing, Washington, D.C., 25 FLRA 113, 115-16 (1987)
(Provision 4). The proposal in that case concerned shift assignments of
employees whose work remained the same regardless of the shift to which they
were assigned and who were all equally qualified to perform that work. The
record in this case, however, indicates that the Agency has a need for
differing skills on each of the shifts to which its data processing employees
are assigned. SeealsoInternational Brotherhood of Electrical
Workers, Local 2080 and Department of the Army, U.S. Army Engineer District
Nashville, Tennessee, 32 FLRA 347, 351-52 (1988) (Provision 1) and cases
cited in that decision.

As previously noted, only data processing employees are
assigned to rotating shifts. The disputed sentence, however, precludes the
Agency from rotating its other employees into different shifts even if the
Agency determines that such shifts are necessary and will require the
employment of employees with differing skills and qualifications to meet the
work requirements on any particular shift. Therefore, we conclude that the
disputed sentence is outside the duty to bargain as it interferes with
management's right to assign work under section 7106(a)(2)(B) of the
Statute.

In view of our determination herein that the disputed
sentence interferes with management's right to assign work, it is unnecessary
for us to address the Agency's additional arguments concerning the
negotiability of the disputed sentence in this case.